DONALD IBENTHAL v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 13, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000356-MR
DONALD IBENTHAL
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
ACTION NO. 98-CR-00008
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Donald Ibenthal has appealed from an order
entered by the Oldham Circuit Court on January 29, 2001, which
denied his motion to set aside his judgment of conviction and
sentence and to dismiss the indictment against him.
Having
concluded that Ibenthal’s right to a speedy trial was not
violated and that the trial court properly denied the motion, we
affirm.
On January 15, 1998, an Oldham County grand jury
indicted Ibenthal on 14 counts of promoting a sexual performance
by a minor,1 two counts of promoting contraband in the second
degree,2 one count of sodomy in the first degree,3 one count of
tampering with physical evidence,4 and two counts of distribution
of matter portraying a sexual performance by a minor.5
At the
time of the alleged offenses, Ibenthal was serving a 35-year
sentence at the Luther Luckett Correctional Complex in Oldham
County, Kentucky.
It was alleged that Ibenthal wrote illicit
letters to his former wife, Kathy Ibenthal,6 from his prison
cell, directing her to photograph the genitals of infants and
young children and then to secretly send the pictures to him at
the correctional complex.
In addition to his own viewing of the
pornographic photos, Ibenthal distributed them to other
prisoners.
Some of Ibenthal’s letters gave Kathy explicit
instructions for improving the photographs, and expressed his
intense desires to have sex with the young children pictured.
All of the exploited children were either related to Kathy or had
been left in her care as a babysitter.
At Ibenthal’s arraignment on January 22, 1998, the
trial court scheduled a pretrial conference for March 26, 1998,
1
Kentucky Revised Statutes (KRS) 531.320.
2
KRS 520.060.
3
KRS 510.070.
4
KRS 524.100.
5
KRS 531.340.
6
Kathy Ibenthal was also indicted and convicted of similar
charges.
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and a trial for July 14, 1998.
case proceeded normally.
For several months, Ibenthal’s
On March 12, 1998, Ibenthal filed a
request for a bill of particulars.
Shortly thereafter, on March
30, 1998, the Commonwealth filed a detainer warrant against
Ibenthal, causing him to be held in custody until a trial on the
current charges could be held.
However, the prolonged illness of
the Assistant Commonwealth’s Attorney in charge of prosecuting
Ibenthal caused Ibenthal’s case to be delayed.
Based on his
counsel’s advice, Ibenthal, who was not eligible for probation on
the sentences he was already serving until 2010, agreed to the
Commonwealth’s motion to continue his trial.
On January 29, 1999, Ibenthal’s trial counsel sent a
letter to the Commonwealth demanding action on his ten-month old
request for a bill of particulars.
The letter also informed the
Commonwealth that since a detainer warrant had been lodged
against Ibenthal, he was statutorily entitled to a trial within
180 days.7
The letter concluded by noting that Ibenthal had
agreed not to press his statutory right to a trial within 180
days due to the Assistant Commonwealth’s Attorney’s illness, but
that counsel could no longer in good conscience ask his client to
wait.
The Commonwealth failed to promptly respond to this
letter.
On May 12, 1999, Ibenthal filed a pro se motion,
pursuant to KRS 500.110, to dismiss the indictment based on the
Commonwealth’s failure to bring him to trial within 180 days.
7
KRS 500.110.
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The following day, Ibenthal’s trial counsel filed a motion
adopting Ibenthal’s pro se motion.
Finally, on June 23, 1999, the Commonwealth responded
to Ibenthal’s request for a bill of particulars.
At a status
conference held on June 24, 1999, the trial court noted that
Ibenthal was not entitled to a dismissal of the indictment under
KRS 500.110, since he had failed to deliver proper notice of his
demand to be tried as required by the statute.
However, the
trial court went on to state that it believed the January 29,
1999, letter constituted such notice.
Accordingly, the trial
court noted that July 29, 1999, would be the 180th day after
notice had been delivered to the Commonwealth.
On July 13, 1999, Ibenthal filed a motion to dismiss
the indictment for failure to charge an offense.
At a pretrial
conference held on July 14, 1999, the trial court indicated that
Ibenthal’s trial could not be held before July 29, 1999, since it
first had to rule on Ibenthal’s motion and since a capital murder
trial had been previously scheduled for July 26, 1999.
In an
order entered on July 19, 1999, the trial court found that there
was “good cause” for delaying Ibenthal’s trial past July 29,
1999, and thus the delay was not in violation of KRS 500.110.
On
September 14, 1999, the trial court entered an order denying
Ibenthal’s motion to dismiss the indictment pursuant to KRS
500.110.
The trial court found that the delays were reasonable
and that Ibenthal was not prejudiced by the delays.
At a status
hearing on April 27, 2000, the trial court stated that the case
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would be set for trial on September 26, 2000, and Ibenthal voiced
no objection to the September 26, 2000, trial date.
The trial
court also indicated that it intended to grant in part Ibenthal’s
motion to dismiss the indictment for failure to charge an
offense.
On September 28, 2000, Ibenthal entered into a plea
agreement with the Commonwealth.
In exchange for an
unconditional plea of guilty on five counts of promoting sexual
performance by a minor, two counts of distribution of matter
portraying the sexual performance of a minor, and two counts of
promoting contraband, the Commonwealth recommended a total prison
sentence of 15 years, to run consecutively with Ibenthal’s
current sentence.
After informing Ibenthal of his constitutional
rights and ensuring that Ibenthal was knowingly, intelligently
and voluntarily waiving all of those rights, the trial court
accepted his guilty plea and entered a judgment of conviction and
sentence consistent with the Commonwealth’s recommendations.
On
October 9, 2000, Ibenthal filed a pro se motion to set aside the
judgment of conviction and sentence on the grounds that his right
to a speedy trial pursuant to KRS 500.110 had been violated.
The
Oldham Circuit Court denied that motion on January 29, 2001, and
this appeal followed.
The entry of a voluntary guilty plea waives all
defenses “other than that the indictment charges no offense.”8
8
Centers v. Commonwealth, Ky.App., 799 S.W.2d 51, 55
(continued...)
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“A guilty plea constitutes a break in the chain of events, and
the defendant therefore may not raise independent claims related
to the deprivation of constitutional rights occurring before
entry of the guilty plea.”9
Nonetheless, we will briefly address
Ibenthal’s right to a trial within 180 days pursuant to KRS
500.110.
KRS 500.110 provides that if a demand for a speedy
trial on an untried indictment is made by a person in custody,
the trial court must try that person within 180 days.
However,
KRS 500.110 also provides that “for good cause shown in open
court, the prisoner or his counsel being present, the court
having jurisdiction of the matter may grant any necessary or
reasonable continuance.”
The Supreme Court of Kentucky has held
that where a defendant has requested the continuance or agreed to
the continuance, his right to a speedy trial under KRS 500.110
has not been violated.10
In the case sub judice, the trial court granted the
original continuance in July 1999 so it could properly consider
the motion for dismissal of the indictment filed by Ibenthal’s
counsel.
The motion had been filed less than one month before
8
(...continued)
(1990)(citing Quarles v. Commonwealth, Ky., 456 S.W.2d 693 (1970)
and Hendrickson v. Commonwealth, Ky., 450 S.W.2d 234 (1970)).
9
Id. (citing White v. Sowders, 644 F.2d 1177 (6th Cir.
1980)).
10
See Wells v. Commonwealth, Ky., 892 S.W.2d 299, 303
(1995).
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his scheduled trial.
The second continuance, granted in
September 1999, was granted with Ibenthal’s consent.
Further, it
should be noted that after the trial court had the opportunity
during the period of continuance to thoroughly review Ibenthal’s
motion to dismiss, that many of the counts against Ibenthal were
dismissed.
Therefore, we hold that Ibenthal’s right to a speedy
trial under KRS 500.110 was not violated, and that the trial
court did not err by denying Ibenthal’s motion to set aside the
judgment of conviction and sentence.
For the foregoing reasons, the order of the Oldham
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, Kentucky
Albert B. Chandler, III
Attorney General
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, Kentucky
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